Criminal Offenders Under 12 Should Not Walk Free In Canada

Sarah E. Leamon
Sarah E. Leamon is a feminist, criminal defence lawyer and the chair of the board at PACE Society in Vancouver’s Downtown Eastside.

There is a violent offender on the loose in Winnipeg -- and police are powerless to do anything about it.

Although his identity is known, this individual has plagued the police and the community for years. Since 2013, he has been dealt with by police on a whopping 22 occasions. Over this time, he is alleged to have committed a plethora of criminal acts. They include arson, car theft, drug possession, robbery, break-and-enter, uttering threats, assault and, most recently and perhaps most disturbingly, a near-fatal stabbing. It is a laundry list of serious criminal behaviour that warrants severe legal action.

To date, however, he has not faced any consequences for his behaviour. He is free to remain in the community. He has not been arrested. He has not been charged with any crimes. He has not even spent a night in jail.

Why? Because he is a 10-year-old boy, and under the law, he is too young to be charged.

Criminal law, as it relates to young offenders in this country, is governed by the Youth Criminal Justice Act. It dictates the minimum age of criminal culpability in this country, which is 12. This means that an individual must be at least 12 years of age before he or she may be charged with a criminal offence of any nature. This is higher than it is both the U.S. and England, where the minimum age of criminal culpability are, respectively, seven and 10.

Thirty-three years ago, the law in Canada was different. Children as young as seven could be held criminally responsible for their actions. In 1983, that changed. The age of criminal culpability was raised to what it is today.

A young offender under the age of 12 may, theoretically, commit any criminal act imaginable under the protection of the law and free from consequence.

Although the new law was controversial at the time, it was ultimately passed with the rationale that 12 years, rather than seven, is an age of more moral maturity. It was generally accepted as the age when children can first understand and process complex moral and ethical issues. The law assumes that children under the age of 12 cannot appreciate the gravity of their actions or the consequences that may flow therefrom.

The bottom line is that, as it stands today, a young offender under the age of 12 may, theoretically, commit any criminal act imaginable under the protection of the law and free from consequence.

The only mechanism by which officials may deal with a young offender under 12 is through provincial guidelines. In many provinces, these guidelines are often highly restricted and grossly inadequate, as they cannot restrict the liberty of the child, force the child to participate in his or her own rehabilitation or obtain psychological treatment for any meaningful length of time.

This is a scary prospect.

Thankfully, violent, young offenders under 12 are extremely rare.

But they are not unheard of.

In 2013, the inadequacy of the law around young offenders was tragically illustrated in the case of a six-year-old Saskatchewan boy who was murdered by another boy under the age of 12. Although details of the crime are largely protected, it was widely reported that the murderer was a young boy who had been well-known to police for a long period of time, mainly due to his notorious propensity for violence. His young age, however, prohibited any police intervention beyond issuing him simple cautions. The criminal justice system was unable to intervene, at any stage prior to, or even after, the murder.

They are vulnerable, young, impressionable and on a bad path. They need help - and they need it sooner than later.

As one can imagine, the sense of public outrage in cases like these is overwhelming. People are left feeling confused, frustrated and forsaken by the judicial system... and the sad reality is that they are.

When the hands of justice are tied, the victims of crime, the community at large and even the young offenders themselves suffer considerably more than they should. After all, the criminal justice system works not only by punishing offenders, but also by intervening and rehabilitating offenders before it is too late.

The preamble to the Youth Criminal Justice Act acknowledges this fact.

It declares that society has a responsibility to address the developmental challenges and needs of young people, and that the justice system must work in partnership with communities and families in order to prevent youth crime. It seeks to do this by addressing underlying causes of youth crime, responding to youth needs, and providing support and guidance. It does not seek to lock young offenders up and throw away the key. It seeks to provide prevention, intervention and instruction for those who need it.

This is a principled and noble mission. Its downfall, however, is that it only applies to a portion of the population, while forsaking others due to their age.

Arguably, the youngest of the young offenders are most often the ones who are most in need. These children tend to come from at-risk families with low incomes and poor support networks. They are more likely to drop-out of school and engage in substance abuse. They are vulnerable, young, impressionable and on a bad path. They need help -- and they need it sooner than later.

The sad reality is that as it stands today, our criminal justice system is unequipped to intervene.

It appears that the only option for Winnipeg law enforcement is to continuing issuing cautions to the boy until he turns 12, at which point he will be under the fold of the Youth Criminal Justice Act.